Judgement Consolidated Appeals from a decree of the High Court (March 27, 1906) mocking a decree of the Subordinate Judge of Aligarh (April 14, 1903). The question decided in these appeals related to the liability of the respondent Maharaj Singh to discharge a debt evidenced by a mortgage bond, dated October 28, 1892, in favour of the Bank of Upper India, and subsequently on August 2, 1897, assigned of the bank to the deceased appellant Raja Balwant Singh, represented in these appeals by the Collector of Etah. On September 26, 1901, the Raja sued the mortgagor Sheoraj and his younger brother Maharaj, who were executants of the deed, of the first and second parts. He joined as defendants several persons, including the respondent in the first of these appeals, who were in possession of portions of the mortgaged property. He sought a decree for payment and in default a sale of the mortgaged property. Law. Rep. 39 Ind. App. 109 ( 1911- 1912) Raja Balwant Singh V. Reverend Rockwell Clancy 41 Sheoraj set up some defences which were overruled by the Courts in India and not repeated in these appeals. Maharaj pleaded that he was a minor under eighteen years of age at the date of the execution of the mortgage bond, that he had not signed it as mortgagor, and that by Hindu law he was not liable for the debts to discharge which the mortgage loan had been obtained, since they were debts contracted by his father for unlawful and immoral purposes. He relied also on the circumstances under which he signed the mortgage, which are detailed in the judgment of their Lordships. The Subordinate Judge found that Maharaj had at the date of the mortgage already attained his majority, that the previous debts were not contracted for immoral or illegal purposes by the mortgagors father, and that by the ordinary Hindu law Maharaj was under a legal obligation to discharge them whether he was a minor or not. He found also that the property in possession of the respondent to the first of these appeals was covered by the mortgage and granted the plaintiff a decree as prayed. He found also that the property in possession of the respondent to the first of these appeals was covered by the mortgage and granted the plaintiff a decree as prayed. The two respondents above named separately appealed to the High Court, which found on the evidence that Maharaj was a minor at the date of the mortgage, that the debts in question had been contracted for illegal and immoral purposes, and that Maharaj was not liable therefor. It decreed the plaintiffs suit as regards half of the mortgaged property, including a moiety of the property in possession of the first respondent above named, but it dismissed the suit so far as it sought relief against Maharaj. De Gruyther, K.C., and Dube, for the appellant, contended that on the evidence the Subordinate Judge was right in his finding that Maharaj had attained his majority before the deed of October, 1892. There was evidence also that Maharaj had subsequently to that date ratified the transaction. Even if he had been a minor when he executed the deed he was as a member of the joint family of which Sheoraj was the manager under a legal obligation to discharge those of the debts in suit which were contracted by the manager for the time being, whether his father or his elder brother. It was conceded that that obligation did not extend to those debts which were contracted for illegal or immoral purposes. But the onus was on the respondent to prove that those purposes were in reality tainted with immorality or illegality, and the evidence given must not relate to the general character of the contractor of debt, but must attach to the particular debt or debts from which the respondent seeks to be exonerated. The High Court says that if he shewed that some debts were so contracted the reasonable inference is that the remainder were so contracted, in other words that the onus of proof was shifted with regard to the remainder. It was contended that this view was wrong see Maynes Hindu Law, 7th ed., pp. 387, 388, and 389; Bhagwat Pershad v. Girja Koer. (( 1888) L. R. 15 Ind. Ap. 99, 103.) Here the case had gone further than the mere contracting of debt. Decrees had been obtained against the father and the property was attached after his death without objection from the sons. 387, 388, and 389; Bhagwat Pershad v. Girja Koer. (( 1888) L. R. 15 Ind. Ap. 99, 103.) Here the case had gone further than the mere contracting of debt. Decrees had been obtained against the father and the property was attached after his death without objection from the sons. They then borrowed to satisfy the decrees and relieve the property. It is too late then to fall back on the immorality of the original debts even if proved. A bona fide purchaser or mortgagee in such case obtains a good title, and such title is not defeated by subsequent proof of its having been immorally contracted see Girdharee Lall v. Kantoo Lall (( 1874) L. R. 1 Ind. Ap. 321,333.) The bank advanced their money without any notice of the immorality which affected the original debt. [Sir John Edge referred to Nanomi Babuasin v. Modun Mohun. (( 1885) L. R. 13 Ind. Ap. 1.)] See in reference to that case Pem Singh v. Partab Singh. (( 1892) I. L. R. 14 Allah. 179.) See also Debt Dat v. Jadu Rai (( 1902) I. L. R. 24 Allah. 459.) and Chintamanrav Mehendale v. Kashinath. (( 1889) I. L. R. 14 Bomb. 320, 327.) Law. Rep. 39 Ind. App. 109 ( 1911- 1912) Raja Balwant Singh V. Reverend Rockwell Clancy 42 Sir Erle Richards, K.C., and Kenworthy Brown, for the respondent, contended that the High Courts finding was amply proved by the evidence that Maharaj was a minor at the date of his execution of the mortgage in suit. It was contended that it was absolutely void as against him and that the action failed so far as his liability and that of his moiety of the joint estate were concerned. It was contended that uj)on the evidence a large proportion of the debts were tainted with immorality and that the bank had advanced the mortgage money without any inquiry into the circumstances. Even if the debts were not so tainted the bank was bound by the recitals of the mortgage deed, the true construction of which was that Sheoraj dealt with the estate as if he were an impartible owner. Maharaj was made a party not as an effective mortgagor but with a view to prevent his thereafter questioning the validity of his brothers alienation. Maharaj was made a party not as an effective mortgagor but with a view to prevent his thereafter questioning the validity of his brothers alienation. It was clear from the deed that Sheoraj did not purport to act as manager of the joint family with authority to bind other members thereof. He was accepted by the bank as sole owner and dealt with on that footing, and whatever might have been the effect of Maharaj being a party thereto if he had been a major, there could be no question that owing to his minority his execution of the deed was inoperative for any purpose. At all events the High Court was right in refusing to decree a sale of his share of the estate and to enforce personal liability against him for any share of the mortgage debt. The respondent Clancy did not appear. De Gruyther, K.C., in reply, cited Cazee Oahnd Buksh v. Bindoo Bashinee Dossee(( 1867) 7 Suth. W. R. 298.), Succaram Morarji v. Kalidas Kalianji(( 1894) I. L. R. 18 Bomb. 631.), Sayad Muhammad v. Fatteh Mahomed (( 1894) L. R. 22 Ind. Ap. 4.), and McLean v. McKay. (( 1873) L. R. 5 P. C. 327.) The rule of the Privy Council is to decide a case on its merits without regarding strictly the precise terms of the pleadings. The judgment of their Lordships was delivered by SIR JOHN EDGE. These are two consolidated appeals from decrees of the High Court of Judicature for the North-Western Provinces at Allahabad, dated March 27, 1906, which varied a decree of the Subordinate Judge of Aligarh, dated April 14, 1903. The suit in which these appeals have arisen was brought on September 26, 1901, by the assignee of a mortgage to recover Rs.5,67,978.8.0 principal and interest, claimed under the deed of mortgage. The mortgage deed, which is dated October 28, 1892, purports to have been made between Raja Sheoraj Singh Bahadur mortgagor, of the first part, Maharaj Singh, the only brother of the said Raja Sheoraj Singh, of the second part, and the Bank of Upper India, Limited, of the third part. Sheoraj Singh and Maharaj Singh were, with others, made defendants to the suit. Sheoraj Singh and Maharaj Singh were, with others, made defendants to the suit. Sheoraj Singh was the sole mortgagor, and, by the deed of mortgage, Sheoraj Singh, declaring that he was the absolute owner in possession of the several vllages, lands, hereditaments, and premises in the deed mentioned, and that there was no sharer in the said property, purported to mortgage the property to the Bank of Upper India, Limited, as security for the repayment with interest of Rs.3,00,000 lent to him by the bank. Maharaj Singh was not a mortgagor, nor did it appear by the mortgage deed that ho had any proprietary interest in the mortgaged property or was obtaining any benefit from the loan to his brother Sheoraj Singh; Maharaj Singh was made a party to the deed of mortgage in order that the fact of his having signed the deed might afford evidence that he had assented to the taking of the loan by Sheoraj Singh and the granting of the mortgage. The suit is one for sale of the property mentioned in the mortgage deed, and by the suit the plaintiff sought to make Maharaj Singh personally liable for the mortgage debt and interest, and to bring to sale Maharaj Singhs share in the mortgaged property, which in fact was the ancestral property of the joint Hindu family which at the Law. Rep. 39 Ind. App. 109 ( 1911- 1912) Raja Balwant Singh V. Reverend Rockwell Clancy 43 date of the mortgage consisted of Sheoraj Singh and Maharaj Singh. The mortgage was assigned on August 2, 1897, by the Bank of Upper India, Limited, to Raja Balwant Singh, who was the plaintiff in the suit. Raja Balwant Singh is now dead, and his minor son Raja Surajpal Singh is represented in this litigation by the Collector of Etah, who is in charge of his estate. Sheoraj Singh, the mortgagor, is the elder of the two sons of Raja Shankar Singh, now dead. The younger of the two sons of Raja Shankar Singh is Maharaj Singh, a defendant in the suit, and the respondent in one of these two appeals. Raja Shankar Singh was the only son of Raja Dilsukh Rai, long since dead. At the time of the Indian Mutiny of 1857-58, Dilsukh Rai, who was then a patwari, did good and meritorious service for the Government. Raja Shankar Singh was the only son of Raja Dilsukh Rai, long since dead. At the time of the Indian Mutiny of 1857-58, Dilsukh Rai, who was then a patwari, did good and meritorious service for the Government. In recognition of those services the Government granted to Dilsukh Rai a considerable estate, now said to produce annually some Rs.50,000 gross income. The lands granted to Dilsukh Rai were not granted as an impartible estate. They are the lands which were, mortgaged by Sheoraj Singh to the Bank of Upper India, Limited. In further recog nition of his services the Government conferred upon Dilsukh Rai the title of Raja as a personal distinction. Raja Dilsukh Rai was a saving and apparently a penurious man. On his death the estate was unencumbered, and he left a large sum of money which he had accumulated. The Government also conferred upon Shankar Singh the title of Raja as a personal distinction. The title was never made hereditary, and although Sheoraj Singh was described in the mortgage deed as a Raja he was not entitled to be so described. Raja Shankar Singh borrowed considerable sums of money, and died on August 24, 1891, leaving debts which he had contracted undischarged. It was to discharge those debts of Raja Shankar Singh, and also some debts which had been contracted by Sheoraj Singh, that the mortgage on which this suit has been brought was made by Sheoraj Singh. Several issues were raised and tried in the Court of the Subordinate Judge. One of those issues arose on a defence of Maharaj Singh that at the date of the mortgage he was under the age of eighteen years, and being at that date a minor was legally incapable of entering into any contract or of binding himself or his interest in the estate by his execution of the deed of mortgage as an assenting party to the taking of the loan and the granting of the mortgage by Sheoraj Singh. Another issue which was tried by the Subordinate Judge related to an alternative case which the plaintiff put forward, by which he sought to make Maharaj Singh and his interest in the estate liable for the payment of the money due under the mortgage, on the alleged ground that it was his duty as a Hindu son to pay with interest the money advanced by the Bank of Upper India, Limited, to Sheoraj Singh, as that money had been lent by the bank to Sheoraj Singh to discharge the debts which had been contracted by Raja Shankar Singh and had been applied by Sheoraj Singh to the discharge of those debts. On behalf of Maharaj Singh it was alleged in answer to the plaintiffs alternative case that Baja Shankar Singh had contracted those debts for the purposes of immorality, and it was consequently contended that there was no duty on his sons to discharge them by payment, and that the payment of those debts by Sheoraj Singh out of money lent to him by the Bank of Upper India, Limited, for that purpose created no liability on Maharaj Singh or his interest in the family estate. The Subordinate Judge found as a fact that at the date of the mortgage, October 28, 1892, Maharaj Singh was of full age, and being apparently under the impression that in obtaining the loan from the Bank of Upper India, Limited, and in making the mortgage, Sheoraj Singh might be regarded as having acted as the manager of the joint Hindu family, the Subordinate Judge dealt with the plaintiffs alternative case and found that it was not proved that the debts which had been contracted by Rajah Shankar Singh had been contracted for the purposes of immorality, and, exempting certain portions of the property which were held by persons who are not parties to either of these appeals, made a decree for sale of the rest of the property mentioned in the deed of mortgage. With the portions of the property which were exempted from sale these appeals are not concerned. Law. Rep. 39 Ind. App. 109 ( 1911- 1912) Raja Balwant Singh V. Reverend Rockwell Clancy 44 From that decree of the Subordinate Judge Maharaj Singh and another defendant, the Reverend J. B. Thomas, who is now represented by the Reverend Rockwell Clancy, filed separate appeals in the High Court. Law. Rep. 39 Ind. App. 109 ( 1911- 1912) Raja Balwant Singh V. Reverend Rockwell Clancy 44 From that decree of the Subordinate Judge Maharaj Singh and another defendant, the Reverend J. B. Thomas, who is now represented by the Reverend Rockwell Clancy, filed separate appeals in the High Court. The High Court on a careful and exhaustive review of the evidence found as a fact that Maharaj Singh was a minor on October 28, 1892, and consequently that the mortgage deed as against him and his interest in the estate was void. Although the High Court obviously considered that an inquiry into the origin and nature of the debts which had been contracted by Raja Shankar Singh was irrelevant in this suit, the High Court reluctantly, and only in view of the question possibly becoming material in an appeal from their decree, carefully considered the evidence bearing on that question, and found as a fact that the debts which Raja Shankar Singh had contracted had been contracted by him for the purposes of immorality. The High Court allowed the appeal of Maharaj Singh, dismissed the suit so far as Maharaj Singh and his interests in the estate were concerned, and, by a separate decree, allowed the appeal of the Reverend J. B. Thomas to the extent of a moiety of the property claimed by him. From those decrees of the High Court these consolidated appeals have been brought. In support of the appeal in which the Reverend Rockwell Clancy is a respondent no argument has been addressed to their Lordships to shew that the appeal against the decree of the High Court which was passed in the appeal of the Reverend J. B. Thomas could be supported if the appeal against the decree obtained by Maharaj Singh in the High Court should fail. Some of the questions which had been considered in the Courts below were on behalf of the appellant argued at considerable length before this Board, and it was also contended on his behalf that in borrowing the Rs.3,00,000 from the Bank of Upper India, Limited, and in making the mortgage of October 28, 1892, Sheoraj Singh had acted as the manager of the family, and for the benefit and protection of the estate, and consequently, as it was urged, that it was immaterial whether Maharaj Singh was or was not of full age at the date of the mortgage. It will be convenient to deal with that contention at once. The contention that Sheoraj Singh had acted as the manager of the family in borrowing the Rs.3,00,000, and in making the mortgage, is unfounded. Evidence, oral and documentary, which their Lordships accept as reliable, proves that Sheoraj Singh, after the death of his father Raja Shankar Singh, assumed without authority the title of Raja, and asserted that the family estate was impartible, and as an impartible estate had descended to him as the elder son of Raja Shankar Singh, and that his brother Maharaj Singh was entitled only to an allowance for maintenance. It was in that assumed position as the absolute owner of an impartible estate, and not as manager of a joint Hindu family, that he obtained the loan from the Bank of Upper India, Limited, and made the mortgage in favour of the bank. The mortgage deed was drawn up by an official of the bank, and in that deed Sheoraj Singh is described as Raja Sheoraj Singh Bahadur, mortgagor, and it is recited that " the said mortgagor is the absolute owner or proprietor of the several villages, lands, hereditaments, and premises hereinafter mentioned, and more particularly described in the schedule hereto attached and intended to be hereby mortgaged in possession free from all incumbrances save and except being mortgaged and under attachment of decrees as mentioned hereinafter .... and the said Maharaj Singh, brother of the said mortgagor has been made a party to this indenture in order to make known his consent and approval to this loan being taken, and the said villages, lands, hereditaments, and premises being mortgaged as security for the same, and the said mortgagor doth hereby declare that the said property is absolutely his own and he has full power to alienate the same by a mortgage sale or otherwise, and that he has only one brother, the said Maharaj Singh, and no sons or any sharer in the said property." In face of that deed it cannot be contended that the Bank of Upper India, Limited, lent the money to Sheoraj Singh, or that Sheoraj Singh made the mortgage in favour of the bank as manager of the joint Hindu family, which consisted of himself and Maharaj Singh. The Bank of Upper India, Limited, made some inefficient inquiries, and lent the Rs.3,00,000 to Sheoraj Singh, not as the manager or even as a member of a joint Hindu family, but in his assumed position as the absolute Law. Rep. 39 Ind. App. 109 ( 1911- 1912) Raja Balwant Singh V. Reverend Rockwell Clancy 45 owner of an impartible estate. Sheoraj Singh, on his own behalf and in his own interests, and not as representing Maharaj Singh, discharged the debts which Raja Shankar Singh had contracted. It need hardly be observed that Sheoraj Singh was not an ancestor or a predecessor of Maharaj Singh ; he was at the date of the mortgage merely a co-sharer with his brother Maharaj Singh in the property of the joint Hindu family of which they were members. The evidence on the question of Maharaj Singhs age on October 28, 1892, is partly oral and partly documentary. According to the evidence, oral and documentary, which the High Court considered to be entirely reliable, Maharaj Singh was born on December 20, 1874, and consequently was under the age of eighteen years on October 28, 1892. The Subordinate Judge had treated the oral evidence that Maharaj Singh had been born on October 28, 1874, as the false evidence of perjured witnesses, and had treated the documentary evidence as fabricated on behalf of Maharaj Singh for the purposes of his defence to the suit. The Subordinate Judge had treated the oral evidence that Maharaj Singh had been born on October 28, 1874, as the false evidence of perjured witnesses, and had treated the documentary evidence as fabricated on behalf of Maharaj Singh for the purposes of his defence to the suit. Before coming to the conclusion that Maharaj Singh was born on December 20, 1874, the High Court, bearing in mind the adverse comments of the Subordinate Judge on that oral and documentary evidence, and with the object of ascertaining how far, if at all, the comments and findings of the Subordinate Judge were justified, had carefully considered the oral evidence of the witnesses, and had examined the documents and papers which had been put in evidence. There was some other documentary evidence which standing alone and unexplained would suggest that Maharaj Singh had probably arrived at the full age of eighteen years before October 28, 1892. The oral and documentary evidence upon which the High Court relied for their finding that Maharaj Singh was a minor when he signed the mortgage deed on October 28, 1892, has been criticized minutely and at length by the learned counsel who argued these appeals on behalf of the appellant, but their Lordships are unable to see any reason for doubting, on the question of the date of birth of Maharaj Singh, the evidence of Pandit Ganesh Ram, Pancham Ram, Jhamman Lah, Ram Prasad, Ganesha Ram the barber, and the defendant-respondent Maharaj Singh. If the evidence of those witnesses is believed Maharaj Singh was born on December 20, 1874. The documentary evidence as to the date of birth of Maharaj Singh is in their Lordships opinion not open to suspicion. Pandit Ganesh Ram proved that he prepared the tewa or abstract horoscope on the day when Maharaj Singh was born, and from it prepared the horoscope which was presented to Raja Dilsukh Rai on the day of the Daston ceremony. The tewa and the horoscope were put in evidence. The horoscope bears upon it in the writing of Raja Dilsukh Rai the name Maharaj Singh which Raja Dilsukh Rai gave to his grandson at the Daston. That horoscope was produced and examined on the occasion of the marriage of Maharaj Singh, and it has been clearly and amply identified as the original horoscope relating to the birth of Maharaj Singh. That horoscope was produced and examined on the occasion of the marriage of Maharaj Singh, and it has been clearly and amply identified as the original horoscope relating to the birth of Maharaj Singh. Ram Prasad, who with other pandits was called in on the birth of Maharaj Singh to prepare a horoscope, produced the almanac in which at the time he had entered the birth of a son in the house of Kunwar Shankar Singh under the date 12th Aghan Sudi, Sambat 1931, which was December 20, 1874. Ganesha, who was the family barber, took the news of the birth of a son of Shankar Singh from Bilram to Raja Dilsukh Rai at Etah, and received from him a present of Rs.2. Ganesha also said in his evidence that on that occasion Raja Dilsukh Rai gave Rs.50 to Balwant Singh for household expenses. The original accounts of the expenditure of Raja Dilsukh Rai, which according to the evidence bear his signature, on the occasions when he examined them, shew that in December, 1874, Rs.2 were given to Ganesha, barber, who brought the news of the birth of a son in the house of Kunwar Sahib, who was Raja Shankar Singh, and which shew that Rs.50 were sent to Bilram on account of the birth of a son in the house of Kunwar Singh, who was Raja Shankar Singh. Ganesha, the barber, proved that that son was Maharaj Singh, and there is no evidence to shew that Raja Shankar Singh ever had more than two sons. Their Lordships cannot regard that oral and documentary evidence as false or even as open to suspicion. In their opinion it conclusively proves that Maharaj Singh was a minor when he signed the mortgage deed on October 28, 1892. There is, however, documentary evidence that prior to October 28, 1892, Maharaj Law. Rep. 39 Ind. App. 109 ( 1911- 1912) Raja Balwant Singh V. Reverend Rockwell Clancy 46 Singh had acted as if he was of full age. For instance, on May 26, 1892, Maharaj Singh signed a vakalatnama appointing Muhammad Tahir Husain, a pleader, as his attorney in a suit in which he and Sheoraj Singh were defendants, and authorizing Muhammad Tahir Husain to appear for him, to file documentary evidence, and to refer the matter to arbitrators or to enter into a compromise. For instance, on May 26, 1892, Maharaj Singh signed a vakalatnama appointing Muhammad Tahir Husain, a pleader, as his attorney in a suit in which he and Sheoraj Singh were defendants, and authorizing Muhammad Tahir Husain to appear for him, to file documentary evidence, and to refer the matter to arbitrators or to enter into a compromise. In that suit Sheoraj Singh, in his written statement of May 26, 1892, made an allegation in reference to s. 444 of the Case, of Civil Procedure which can be construed only as meaning that Maharaj Singh was at that date a minor. For another instance, in a suit in which Sheoraj Singh and Maharaj Singh were plaintiffs, they, on August 13, 1892, signed a vakalatnama appointing Muhammad Tahir Husain, pleader, their attorney, and authorizing him to act for them in the suit. On the other hand, on August 19, 1892, a decree was made in a suit which had been instituted on July 14, 1892, and in which Maharaj Singh had been treated throughout as a minor under the guardianship of his brother Sheoraj Singh. It is probable that, until it became necessary in this suit to ascertain the actual date of the birth of Maharaj Singh, neither he nor Sheoraj Singh knew his precise age. However that may have been, their Lordships find as a fact, on the clear and reliable evidence to which they have referred, that Maharaj Singh was a minor under the age of eighteen years when he signed the mortgage deed of October 28, 1892. Having found as a fact that Maharaj Singh was a minor on October 28, 1892, it is not necessary for their Lordships to consider any other issue. This suit has been brought on the mortgage deed of October 28, 1892, by the assignee of that mortgage, and as their Lordships have held that the mortgage was not made by Sheoraj Singh as the manager of the family, or in any respect as representing Maharaj Singh, and as Maharaj Singh was then a minor, the mortgage deed as against him and his interest in the estate was not merely voidable, it was void and of no effect, and must be regarded as a mortgage deed to which he was not even an assenting party and as a mortgage deed which did not affect him or his interest in the estate. Their Lordships will humbly advise His Majesty that the decrees of the High Court be affirmed and these appeals be dismissed with costs.